Thompson v Arnold
CourtHigh Court of Justice
Full case nameThompson & Ors v Arnold
Started5 June 2007
Decided6 August 2007
Citation(s)[2007] EWHC 1875 (QB)
Cases cited
  • Read v Great Eastern Railway (1868) LR 3 QB 555)
  • Riverlate Properties Limited v Paul [1975] Ch 133
  • Thomas Bates Limited v Wyndham's Limited (Lingerie) Limited [1981] 1 WLR 505
  • George Wimpey UK Ltd. V VI Construction Ltd. [2005] EWCA 77
  • Harris v Empress Motors [1984] 1 WLR 212
  • Gammell v Wilson [1982] AC 27
  • Pickett v British Rail Engineering Ltd. [1980] AC 136 (...)
Legislation cited
Court membership
Judge(s) sittingMr Justice Langstaff
Keywords

Thompson & Ors v Arnold [2007] EWHC 1875 (QB), was a law on damages case where the existing case law (Read v Great Eastern Railway (1868) LR 3 QB 555)[4] reaffirmed that damages awarded for a claim for personal injury were deemed to have already been awarded, even if death ensued as a consequence of personal injury.[5] Where a claimant had settled their damages claim, or pursued it to trial, their dependants would have no right of action under the Fatal Accidents Act 1976 if the injury later proved fatal.[6] Langstaff J. held that Read v Great Eastern Railway had been correctly decided as a matter of statutory construction and neither Article 6 nor Article 8 of the ECHR had been infringed. The claim was dismissed.[7]

Facts

At the age of 31, Wendy Thompson consulted her GP, the defendant, Doctor Christine Arnold, about a lump on her left breast which was diagnosed by the defendant as benign, when it was not. By the time it became apparent that the diagnosis had been negligently made, it was too late to save Mrs Thompson's life. In all probability, she may not have died if the correct diagnosis had been made.[7]

At the point she became aware that a cause of action was possible against her former doctor, she was already terminally ill, however, she managed to serve proceedings against her former doctor by September 1999. It was predicted that she would die of cancer at some point within the next year. Her lifetime action was settled for the sum of £120,000 in "full and final satisfaction of her claim", however, she had first obtained judgment in default of defence because liability was not in question at that stage.[8]

It ought to have been well known by any reasonably proficient personal injury practitioner that case law (Read v Great Eastern Railway (1868) LR 3 QB 555) had established well over a hundred years before that where a claimant pursued to judgment or settlement a claim for damages for an injury which subsequently proved fatal their dependants could have no right of action under the Fatal Accidents Act 1976.

The Hon. Mr Justice Langstaff, BAILII transcript[9]

The schedule of loss and damage described in the particulars of claim of September 1999 contained a statement that after her death, her dependants would be able to issue a separate claim pursuant to the Fatal Accidents Act 1976. However, her legal representatives appeared to have been unaware that a Fatal Accidents Act claim could not be brought by dependants in the situation where the deceased had already been awarded damages.

Wendy Thompson died on 10 April 2002. Three years later her husband and two daughters issued a claim against Dr Arnold under the Fatal Accidents Act 1976.[7] When the case came before the High Court on 7 April 2005, the defence sought direction on the preliminary issue that the action could not be brought since the damages claim of the deceased had been settled during her lifetime.[8]

Judgment

It was held that the dependants of an accident victim who had already received a compensation award for personal injury which later prove fatal were unable to make a claim under the Fatal Accidents Act 1976.[6][10] More specifically, an action under the Fatal Accidents Act 1976 cannot be brought where there has been full and final settlement of a claim made under The Law Reform (Miscellaneous Provisions) Act 1934, also known as a LR(MP)A claim.[11]

The alternative construction of the Fatal Accidents Act 1976, as argued by Counsel for Mrs Thompson’s family, would have been that the dependants would have been permitted a right of action for financial dependency[lower-alpha 1] on the injured person's death, even though the injured person might have already settled a claim for loss of earnings “during the lost years” and within the deceased's lifetime.[3][12] Langstaff J stated that in effect, the fatality would be the circumstance which engaged the right of action under FAA 1976 in the first place and it followed that this would have given rise to the prospect of "impermissible double recovery"[2] which would have been an abuse of process.[1]

Interaction of statute

As part of the judgment, a contrasted approach was taken to the interaction of the two statutes:[13] The Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934, as follows:[14]

Under the Law Reform (Miscellaneous Provisions) Act 1934, a damages claim:[15]

  • would be made by the claimant themselves and any damages would be paid directly to them
  • if made on a lump sum basis, would be a claim for loss of earnings up to the date of anticipated death
  • would not be caught by the introduction of periodical payment orders
  • would be a life time damages award for a claimant whose death is impending and thereafter could include a claim for the "lost years"[16]
  • would not contain any element of care for any child, or husband, of the claimant after death
  • could, however, include the costs incurred in doing what the claimant would have done in order to care for family members up until they died
  • would not necessarily arise from wrongful action that proved fatal[11]
  • where the claimant dies, any sum remaining from the award they received would be dealt with as part of their estate, and in accordance with their will, subject only to any claims under the Inheritance (Family Provision) legislation.[14]

Under The Fatal Accidents Act 1976, a damages claim:[17]

  • would be one of "earnings dependency" and one of "services dependency"
  • would contain no lump sum for pain, suffering and loss of amenity of the deceased
  • would permit dependants to claim a bereavement lump sum award for a standard figure prescribed by legislation
  • if made by dependants for their direct benefit, would not be subject to the laws of intestacy, or to any will

Mistake and duty

At an early stage, prior to pleadings being issued, a mistake of law had been made by the head of the solicitor and counsel for the claimant.[7] The mistake was that the legal representatives appeared to be unaware that a claim under the Fatal Accidents Act could not be brought where the deceased had already been awarded, or had agreed, damages for their injury. This had the effect of the damages claim being erroneously and deliberately overvalued.[18] The claim which had been settled for £120,000 did not include an amount for future loss of earnings, or rather, the “lost years”. The defendant's solicitor did not inform the claimant's legal advisors of the mistake because she believed, "consistent with her professional duty to her client", that she should not point out the mistake to the opponent.[7][18]

When proceedings were brought, the mistake of law by the late Mrs Thompson’s solicitor and counsel was admitted candidly to the court. However, this mistake had been taken advantage of by the defendant in the original case.[8] This amounted to a unilateral mistake, rather than mutual mistake.[19]

The defendant took an advantage of a patent mistake of law by the deceased's solicitor and counsel, but this mistake was not instigated by the defendant,... ...if I had thought that the conduct of the defendant was unconscionable, I should have declined relief in any event, in the exercise of my discretion, because of the conduct of the deceased by her legal representatives.

The Hon. Mr Justice Langstaff, BAILII transcript[20]

Langstaff J. approved[lower-alpha 2] the conclusion of Nelson J. in Thames Trains Limited and Railtrack PLC v Michael Adams [2006] EWHC 3291 that there is no general duty upon one party to litigation, or potential litigation, to point out the mistakes of another party or its legal advisers, and for the following reasons:[12]

  • there was no duty to advise the opposing legal representatives
  • each party seeks their own advice in an adversarial system
  • a solicitor’s duty was to his client, however, this is subject to their duty to the court
  • if a "reasonable man" would ask in the situation where a solicitor enlightens the other party as to their mistake: "whose side are you on?"[7][8]

However, this mistake was not contrived by Dr Arnold or her legal team, and the court accepted that this was not a situation where the conduct of Dr Arnold or her legal team was considered to be unconscionable.[12] However, the facts of a case would be taken into account and any mistake instigated by the conduct of the defendant would have been given different consideration.[22]

Limitation

Any action to recover damages in respect of the injury due to Dr Arnold's negligence was precluded from the point Wendy Thompson settled her claim. Section 12 of the Limitation Act 1980 was cited as providing for:[12]

"(1) An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury (whether because of a time limit in this Act or in any other Act, or for any other reason)
Where any such action by the injured person would have been barred by the time limit in Section 11 of this Act, no account shall be taken of the possibility of that time limit being over ridden under Section 33 of this Act."

The court found that both the Fatal Accidents Act and Section 12 of the Limitation Act provided that:

"a right of children and spouses to claim an award for loss of their dependency upon the deceased wife and mother arises where there has been no determination (by settlement or judgment) of the claim of the injured victim prior to her death."[23]

Notes

  1. ↑ Also referred to as "income dependency"[3]
  2. ↑ The duty that falls on solicitors of the opposing side, as set out in Thames Trains Ltd v Adams, was reinforced by Langstaff J. in Thompson v Arnold [2007] EWHC 1875 (QB)[21]

References

  1. 1 2 Tuff, Matthew (10 June 2022). "The law on fatal accident claims". Moore Barlow LLP. Retrieved 8 May 2023. Thompson and others v Arnold (2007) EWHC 1875 (QB)... ...confirmed that where a claimant obtained a settlement or judgment for their personal injury claim and then died as a result of that same injury or illness, their dependants were precluded from bringing a fatal accident claim. To attempt to do so would be an abuse of process.
  2. 1 2 "Personal Injury Update". New Law Journal (7292). 11 October 2007. ...Langstaff J then went on to note that the alternative construction of FAA 1976 contended for by counsel for the dependants would have the effect that death would be the circumstance which brought the right of action under FAA 1976 into play which he stated would give rise to the prospect of double recovery...
  3. 1 2 3 Jha, Swati; Power, Eloise (12 May 2022). Lessons from Medicolegal Cases in Obstetrics and Gynaecology: Improving Clinical Practice. Cambridge University Press. p. 335. ISBN 978-1-108-99511-5. Langstaff J observed that a claim for income dependency brought on behalf of the dependants after death under the Fatal Accident Act is "always likely to be higher than a claim for loss of income during the "lost years".
  4. ↑ McBride, Nicholas J.; Bagshaw, Roderick (17 May 2018). Tort Law. United Kingdom: Pearson UK. p. 812. ISBN 978-1-292-20785-8. Read v The Great Eastern Railway Company (1868) LR 3 QB 555
  5. ↑ "Thompson & Ors v Arnold [2007] EWHC 1875 (QB)". www.casecheck.co.uk. 6 August 2007. Retrieved 21 April 2023. Death as a Consequence of Injuries for which Damages already awarded.
  6. 1 2 Howarth, David; Matthews, Martin; Morgan, Jonathan; O'Sullivan, Janet; Tofaris, Stelios (7 January 2016). Hepple and Matthews' Tort Law: Cases and Materials. Bloomsbury Publishing. p. 572. ISBN 978-1-5099-0040-4. However, where the deceased had pursued a claim for a wrongful act that resulted in his death to judgment or settled a claim before his death, then his dependants had no cause of action under the 1976 Act, as the dependants would already have received compensation for the wrongful act resulting in the deceased's death: see Thompson v Arnold [2007] EHHC 1875 (QB), [2008] PIQR P1.
  7. 1 2 3 4 5 6 The Hon. Mr Justice Langstaff (6 August 2007), Thompson & Ors v Arnold [2007] EWHC 1875 (QB), retrieved 21 April 2023
  8. 1 2 3 4 "No duty on doctor's solicitor to inform opponent of mistake". Irish Medical Times. 23 November 2007. Retrieved 29 April 2023. ...Mrs Thompson first obtained judgment in default of a defence being lodged and then proceeded to settle her action. A consent order to that effect was made on 20 January 2000. This order provided, inter alia, as follows: "The claimant accepts the sum of £120,000 in full and final satisfaction of her claim."
  9. ↑ Thompson & Ors v Arnold [2007] EWHC 1875 (QB) at para. 5 (6 August 2007)
  10. ↑ "Thompson & Ors v Arnold [2007] EWHC 1875 (QB) (06 August 2007)". www.casecheck.co.uk. Retrieved 30 April 2023.
  11. 1 2 Beeby, Gabriel. "An Overview of Claims for and Following Death" (PDF). guildhallchambers.co.uk. Retrieved 24 April 2023.
  12. 1 2 3 4 "Thompson & Ors v Arnold, [2007] EWHC 1875 (QB) | England and Wales High Court (Queen's Bench Division), Judgment". www.casemine.com. 6 August 2007. Retrieved 29 April 2023.
  13. ↑ DLS (13 July 2022). "Thompson and others v Arnold: QBD 6 Aug 2007". swarb.co.uk. Retrieved 30 April 2023. The court considered the interaction of the 1934 and 1976 Acts.
  14. 1 2 Thompson & Ors v Arnold [2007] EWHC 1875 (QB) at para. 19 (6 August 2007)
  15. ↑ Ruth Morrissey and Paul Morrissey v Health Service Executive, Quest Diagnostics Incorporated and Medlab Pathology Limited, 2019 120, 121, 122, 121-122 (The Supreme Court 19 March 2020) ("Thompson v. Arnold [2007] EWHC 1875 (QB), Langstaff J. helpfully sets out the differences between a personal injuries claim taken by an individual who has suffered a shortened life expectancy as a result of negligence and a claim under the Fatal Accidents Act 1976 taken by the dependants of the deceased, at paras. 20-21 (...)").
  16. ↑ Lunney, Mark; Nolan, Donal; Oliphant, Ken (2017). Tort Law: Text and Materials. Oxford University Press. ISBN 978-0-19-874552-5. Note, however, that one concern with using the lost years claim as a means of providing for dependants after the claimant's death - that the claimant might spend the lost years award during his own shortened life so that there is nothing left for dependants at his death - can be avoided by use of a periodical payment order (...)
  17. ↑ Thompson & Ors v Arnold [2007] EWHC 1875 (QB) at para. 21 (6 August 2007)
  18. 1 2 Whiteley, Miranda (30 September 2007). "Mistake". Mills & Reeve LLP. Retrieved 1 May 2023 – via Lexology. In Thompson, the claimant's solicitor had submitted a deliberately over-inflated claim.
  19. ↑ "Thompson v Arnold". vlex.co.uk. 6 August 2007. 14. Retrieved 1 May 2023. The mistake was thus unilateral, not mutual. He pointed out that in some circumstances one party to a contract who realised that the other party had made a mistake might not be able to take advantage of it. The court would prevent it.
  20. ↑ Thompson & Ors v Arnold [2007] EWHC 1875 (QB) at para. 111 (6 August 2007)
  21. ↑ "Review of the Australian Solicitors' Conduct Rules" (PDF). 1 February 2018. p. 134. The duties of English solicitors regarding obligations to opponents were articulated in Thames Trains Ltd v Adams [2006] EWHC 3291 (QB), approved in Thompson v Arnold [2007] EWHC 1875 (QB).
  22. ↑ "Is there an obligation to point out your opponent's mistake?". Thomson Reuters Practical Law. 20 August 2007. Retrieved 1 May 2023. Each situation does, however, turn on its own facts. A mistake induced by conduct of the defendant would be viewed differently.
  23. ↑ Thompson & Ors v Arnold [2007] EWHC 1875 (QB) at para. 90 (6 August 2007)
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